WP/22295/2014 of Gandarapu Chendrasekhar Reddy S/o Ram Reddy, Vs The Government of Andhra Pradesh on 30 December 2014

ORDER

This Writ Petition is filed to declare the action of therespondent Nos.1 to 5 in not taking steps for removal of allegedillegal and unauthorized constructions being made by respondentNos.6 to 8 in premises in CAS No.613/2, Ward No.26-1, near DoorNo.1971 to 1999, near Sri Annamayya Circle, Mini-Bypass Road,Nellore District, as illegal and arbitrary and to direct 5[th] respondent-Corporation to immediately take steps for their removal.

2. Petitioners are residents of Srinagar Colony, situatedin CAS No.678/1,678/2 and 613/3 adjacent to Mini-Bypass Roadand Kondayapalem Road, Nellore District. The 2[nd] petitioner is theowner of plot Nos.1 and 2 of layout L.P.No.132/88 havingpurchased the same under registered sale deed dt.31-12-2002.

3. Petitioners contend that in front of their plots, leadingto Sri Golagamudi Venkayya Swamy Temple in Nellore town, thereis a 60’ road as per layout plan L.P.No.132/88 which starts from themini bypass road at Sri Annamayya Circle and goes to SriGolagamudi Venkayya Swamy temple and the residents of thearea have to reach the mini bypass road of the National Highwayonly through the 60’ road.

4. They allege that 6[th] respondent and one Dr.N.Sridhar Rao have site on the South-West side of the 60’ roadand the said site is situated on the margin of the 60’ road where itjoins the mini-bypass road; that their site is in CAS No.613/2, WardNo.26-1, near Door No.1971 to 1999, near Sri Annamayya Circle,Mini-Bypass Road, Nellore District; that the said persons appliedfor sanction for construction of a non-residential hostel building consisting of two cellars+ground+4 upper floors to the 5[th]respondent-Corporation; permission was accorded them toconstruct such a building vide B.P.No.123/2012/G2 dt.28-02-2012;after obtaining such sanction, the said persons gave their sites fordevelopment to respondent Nos.7 and 8 for construction of amultistoried building; and respondent Nos.6 to 8 then startedconstruction of commercial complex on the plot contrary to theapproved plan with deviations from the plan apart fromencroaching a portion of the 60’ road which leads to Srinagarcolony and other areas. They allege that respondent Nos.6 to 8have constructed a staircase and ramps into the 60’ road illegallyand contrary to the sanctioned plan; the Roads and BuildingsDepartment have started laying B.T. road on the 60’ wide road; when officials of the said department reached the buildingconstructed by respondent Nos.6 to 8, they stopped laying theroad in front of their complex; and the contractor of the saiddepartment colluded with respondent Nos.6 to 8 and changed thealignment of the road so as not to affect the construction made byrespondent nos.7 and 8. Petitioners contend that they lodged acomplaint dt.12-02-2014 with respondent Nos.1 to 5 about theconstruction of a commercial complex contrary to the sanctionedplan by respondent Nos.6 to 8 and encroachment of road marginpointing out that it will cause inconvenience to the public staying inSrinagar Colony and also to other commuters, but the latter havenot taken any action; and respondent Nos.6 to 8 have proceededwith the construction contrary to the plan and even constructed anextra floor illegally without any permission from 5[th] respondent. They also stated that they were informed by officials of 5[th]respondent that 6[th] respondent and her co-owner Dr. N.SridharRao have shown width of road as 40’ in their plan and also obtained permission for hostel building. They alleged that thereare several schools located in the nearby colonies andconstruction of commercial complex in the road margin at theadjoining point would create a stumbling block for the traffic goingto the National High way and cause inconvenience to thecommuters and also unforeseen accidents. Along with the WritPetition, petitioners have filed a copy of the layout, a site plan anda copy of the representation dt.12-02-2014 given by them to therespondent Nos.1 to 5.

5. Notice before admission was ordered in the WritPetition on 06-08-2014. Learned Government Pleader forRevenue took notice for respondent Nos.1 and 2, learnedGovernment Pleader for Roads and Buildings took notice for 3[rd]respondent, learned Government Pleader for Irrigation took noticefor 4[th] respondent and Sri K.Ananda Rao, learned counsel filedappearance for respondent Nos.7 and 8.

6. The 5[th] respondent filed counter affidavit stating thatDr.N.Sridhar Rao and 6[th] respondent are husband and wife; thatthey had house site of 1283.85 sq mtrs in Sy. No.613/2 in DoorNo.26/1/1971 to 1999, near Annamaiah Circle, Mini Bye-passroad, Nellore; they had made an application dt.01-02-2012 to 5[th]respondent-Corporation for construction of a commercial complex of 2 cellars for parking and G+4 upper floor for non residentialbuilding in their house site and requested the approval of thebuilding plan; that this was forwarded to the Director of Town andCountry Planning, Hyderabad; that the latter had given technicalapproval subject to certain conditions vide B.P.No.17/2012; andthereafter, 5[th]respondent released the permit videB.A.No.123/12/G1 dt.28-02-2012. The 5[th] respondent contended that as per the approved Master Plan, Kondayapalem Road widthwas only 40’ and although the petitioners contend that road widthis 60’ as per layout, 5[th] respondent is obliged only to follow theapproved master plan while giving building permission but not theroad width mentioned in the approved layout. It is furthercontended that constructions were made by respondent Nos.6 to 8without following the set backs on the rear side and also on twosides pointing out that the shortfall on the rear side is 3 meters, onone side it is 3.20 meters and on the other side 1.1 meters. It isfurther contended that show cause notice dt.26-03-2014 underSection 452 of the Hyderabad Municipal Corporation Act, 1955 (for short ‘the Act’) was issued by 5[th] respondent to respondentNos.6 to 8 asking them to show cause why the constructions madein deviation of sanctioned plan shall not be removed within sevendays; but respondent Nos.6 to 8 did not file any explanation; andtherefore, 5[th] respondent had filed a criminal petition and initiatedcriminal proceedings before V Additional Judicial First ClassMagistrate, Nellore on 22-09-2014 and the complaint is pending. Itdenied that the petitioners’ complaint dt.12-02-2014 was receivedby it and alleged that nobody approached it complaining ofdeviations in the constructions made by respondent Nos.6 to 8,that it is waiting for the judgment in the criminal case for takingnecessary steps for removal of deviations in the construction of thebuilding.

7. The 8[th] respondent filed a counter affidavit statingthat he is filing the said counter affidavit on behalf of 7[th] respondentalso. It is stated that respondent Nos.7 and 8 floated a partnershipfirm in the name and style of ‘Vishwak Constructions’ and they hadentered into development agreement dt.14-07-2011 and additionaldevelopment agreement-cum-GPA dt.12-08-2013 with 6[th]

respondent. They also admit that 6[th] respondent had made anapplication to 5[th] respondent-Corporation for permission forconstruction of a multistoried non-residential complex and suchpermission was granted on 28-02-2012 by 4[th] respondent. Theycontended that the approved master plan of Nellore city whichcame into effect from 2011 onwards provided only for 40’ road butnot 60’ road and the petitioners are not correct in contending thatthere is 60’ road adjacent to the property of 6[th] respondent. Theyalleged that L.P.No.132/88 showing 60’ road width has norelevance and that only after satisfying itself about the site planand other requirements, permission was accorded by 5[th]respondent. They denied that they had stopped the laying of B.T.road by the Roads and Buildings Department and contended thatthe said department is concerned only with 40’ width of road. Theydenied that a staircase and ramp was projected into 60’ road andthat because of this, the road became narrow. They alleged that2[nd] petitioner is also a builder and he had made severalconstructions in deviation of the sanctioned plans and he has nolocus to file this Writ Petition. They also contended that the otherpetitioners have houses far away and not on the side of theexisting 40’ road and they also do not have any locus to file thisWrit.

8. The counsel for the respective parties reiterated thestand of their respective clients.

9. I have noted the submissions of both sides.

10. From the above pleadings, it is clear that adjacent tothe property of 6[th] respondent, there is a 60’ road. This is alsoapparent from the copy of L.P.No.132/88 produced by the petitioners before me. This layout had been approved by the thenNellore Municipality in Ref. No.14154/87/G1 dt.21-07-1987.

11. Although the respondents have filed certaindocuments indicating that a Master plan was framed with theNellore Municipality in the year 2010 and that it was notified afterfollowing the procedure prescribed under AP Town PlanningRules, no material is placed before me by any of the respondentsto show that in the Master plan, the width of the road in question isshown only as 40’. In the absence of such material, it is notpossible for this Court to accept the contention of the respondentsthat adjacent to 6[th] respondent’s property, the width of the road isonly 40’. The sketch filed by 8[th] respondent does not bear anystamp and cannot be treated as part of an authenticated notifiedmaster plan of Nellore Municipal Corporation.

12. In my opinion, when 5[th] respondent Corporationthrough its predecessor Nellore Municipality had sanctioned alayout showing the 60’ road, it is highly unlikely that in the notifiedMaster plan, the width of the road would be reduced from 60’ to40’ width.

13. Assuming for sake of argument without concedingthat only 40’ wide road is provided in the Master plan, still the other20’ area adjacent to the property of 6[th] respondent would notautomatically become the property of 6[th] respondent. Suchproperty would still vest in 5[th] respondent only as per provisions ofthe Act and the Rules made thereunder. Unless 5[th] respondenthad parted with it in favour of 6[th] respondent, the 6[th] respondentcannot make any construction therein. It is unfortunate thatofficials of 5[th] respondent have deliberately ignored this aspect and allowed the respondent Nos.6 to 8 to occupy the area beyondthe alleged 40’ wide road which in fact had vested with the 5[th]respondent-Corporation.

14. Admittedly, the construction made by 8[th] respondentis in violation of the set backs provided in the plan sanctioned to6[th] respondent by 5[th] respondent and a notice under Section 452of the said Act bearing a date 26-03-2014 had already beenserved on respondent Nos.6 to 8 by 5[th] respondent. It is notdisputed that respondent Nos.6 to 8 had not given any explanationthereto within the time stipulated therein. In spite of such failure,5[th] respondent has not initiated action under Section 452 (2) r/wSection 636 of the said Act to remove the constructions indeviation of the sanctioned plan. The filing of the criminalprosecution against respondent Nos.6 to 8 before V AdditionalJudicial First Class Magistrate, Nellore on 22-09-2014 cannot be aground for not taking action under Section 452 (2) r/w 636 of thesaid Act against the deviated constructions made by respondentNos.6 to 8. The above conduct of 5[th] respondent clearly indicatescollusion between officials of 5[th] respondent with respondentNos.6 to 8.

15. Therefore, it is clear that 5[th] respondent-Corporationhas abdicated the responsibility to enforce the provisions of the Actand also to safeguard the property which is vested in 5[th]respondent and protect it from encroachment by respondent Nos.6to 8.

16. Therefore, I am unable to accept the contention ofthe respondent Nos.6 to 8 that because 2[nd] petitioner is a builderand is alleged to have made certain constructions in the violation of the sanctioned plan, he has no locus to file a Writ Petitionchallenging the illegal constructions made by respondent Nos.6 to8. The question is not whether the 2[nd] petitioner has made illegalconstructions but the question is whether the constructions madeby respondent Nos.6 to 8 are in conformity with the sanctionedplan or not and if so, why 5[th] respondent has not taken action fordemolition the constructions made by respondent Nos.6 to 8 inviolation of the sanctioned plan. Even otherwise the otherpetitioners would have locus to file the Writ Petition since they stayin the adjacent property and are affected by the illegalconstructions made by respondent Nos.6 to 8.

17. The Supreme Court in several cases has taken aview that constructions made in violation of the sanctioned planshould not be allowed to stand and action should be initiatedagainst the officials of the Municipal Corporation who allowed suchconstructions to come up.

18. The Supreme Court in Friends Colony

Development Committee v. State of Orissa[[1]]had observed :

“25. Though the municipal laws permit deviations fromsanctioned constructions being regularised by compounding butthat is by way of exception. Unfortunately, the exception, with thelapse of time and frequent exercise of the discretionary powerconferred by such exception, has become the rule. Only suchdeviations deserve to be condoned as are bona fide or areattributable to some misunderstanding or are such deviations aswhere the benefit gained by demolition would be far less than thedisadvantage suffered. Other than these, deliberate deviations donot deserve to be condoned and compounded. Compounding ofdeviations ought to be kept at a bare minimum. The cases ofprofessional builders stand on a different footing from anindividual constructing his own building. A professional builder issupposed to understand the laws better and deviations by suchbuilders can safely be assumed to be deliberate and done withthe intention of earning profits and hence deserve to be dealt withsternly so as to act as a deterrent for future.It is commonknowledge that the builders enter into underhand dealings. Bethat as it may, the State Governments should think of levying heavy penalties on such builders and therefrom develop awelfare fund which can be utilised for compensating andrehabilitating such innocent or unwary buyers who are displacedon account of demolition of illegal constructions.”

19. This decision was followed in Esha Ekta Apartments Coop. Housing Society Ltd. v. Municipal Corpn. of Mumbai[[2]]

,recentlyand the Supreme Court declared therein:

“56. …We would like to reiterate that no authority administeringmunicipal laws and other similar laws can encourage violation ofthe sanctioned plan. The courts are also expected to refrain fromexercising equitable jurisdiction for regularisation of illegal andunauthorised constructions else it would encourage violators ofthe planning laws and destroy the very idea and concept ofplanned development of urban as well as rural areas.”

20. In Friends Colony Development Committee (2

supra), the apex Court had declared:

“ 20… …Though the local authorities have the staff consisting ofengineers and inspectors whose duty is to keep a watch on buildingactivities and to promptly stop the illegal constructions or deviationscoming up, they often fail in discharging their duty. Either they don’tact or do not act promptly or do connive at such activities apparentlyfor illegitimate considerations. If such activities are to stop somestringent actions are required to be taken by ruthlessly demolishingthe illegal constructions and non-compoundable deviations. .. … Atthe same time, in order to secure vigilant performance of duties,responsibility should be fixed on the officials whose duty it was toprevent unauthorised constructions, but who failed in doing soeither by negligence or by connivance.”

21. It reiterated this in Shanti Sports Club v. Union of India[[3]]as under :

21. It reiterated this in Shanti Sports Club v. Union of India[[3]]as under :

“ 73. … … In all developed countries, great emphasis has beenlaid on the planned development of cities and urban areas. Theobject of planned development has been achieved by rigorousenforcement of master plans prepared after careful study ofcomplex issues, scientific research and rationalisation of laws. Thepeople of those countries have greatly contributed to the concept ofplanned development of cities by strictly adhering to the planninglaws, the master plan, etc. They respect the laws enacted by thelegislature for regulating planned development of the cities andseldom there is a complaint of violation of master plan, etc. in theconstruction of buildings, residential, institutional or commercial. Incontrast, scenario in the developing countries like ours is substantially different. Though, the competent legislatures have,from time to time, enacted laws for ensuring planned developmentof the cities and urban areas, enforcement thereof has beenextremely poor and the people have violated the master plans,zoning plans and building regulations and bye-laws with impunity.

74. In the last four decades, almost all cities, big or small, haveseen unplanned growth. In the 21st century, the menace of illegaland unauthorised constructions and encroachments has acquiredmonstrous proportions and everyone has been paying heavy pricefor the same. Economically affluent people and those havingsupport of the political and executive apparatus of the State haveconstructed buildings, commercial complexes, multiplexes, malls,etc. in blatant violation of the municipal and town planning laws,master plans, zonal development plans and even the sanctionedbuilding plans. In most of the cases of illegal or unauthorisedconstructions, the officers of the municipal and other regulatorybodies turn blind eye either due to the influence of higherfunctionaries of the State or other extraneous reasons. Those whoconstruct buildings in violation of the relevant statutory provisions,master plan, etc. and those who directly or indirectly abet suchviolations are totally unmindful of the grave consequences of theiractions and/or omissions on the present as well as futuregenerations of the country which will be forced to live in unplannedcities and urban areas. The people belonging to this class do notrealise that the constructions made in violation of the relevant laws,master plan or zonal development plan or sanctioned building planor the building is used for a purpose other than the one specified inthe relevant statute or the master plan, etc., such constructions putunbearable burden on the public facilities/amenities like water,electricity, sewerage, etc. apart from creating chaos on the roads.The pollution caused due to traffic congestion affects the health ofthe road users. The pedestrians and people belonging to weakersections of the society, who cannot afford the luxury of air-conditioned cars, are the worst victims of pollution. They suffer fromskin diseases of different types, asthma, allergies and even moredreaded diseases like cancer. It can only be a matter ofimagination how much the Government has to spend on thetreatment of such persons and also for controlling pollution andadverse impact on the environment due to traffic congestion on theroads and chaotic conditions created due to illegal andunauthorised constructions. This Court has, from time to time, takencognizance of buildings constructed in violation of municipal andother laws and emphasised that no compromise should be madewith the town planning scheme and no relief should be given to theviolator of the town planning scheme, etc. on the ground that hehas spent substantial amount on construction of the buildings, etc.—K. Ramadas Shenoy v. Town Municipal Council, Udipi[38], G.N.Khajuria (Dr.) v. DDA[39], M.I. Builders (P) Ltd. v. Radhey ShyamSahu[40], Friends Colony Development Committee v. State of

Orissa[41], M.C. Mehta v. Union of India[42]and S.N. Chandrashekar v.State of Karnataka[43].

75. Unfortunately, despite repeated judgments by this Court andthe High Courts, the builders and other affluent people engaged inthe construction activities, who have, over the years shown scantrespect for regulatory mechanism envisaged in the municipal andother similar laws, as also the master plans, zonal developmentplans, sanctioned plans, etc., have received encouragement andsupport from the State apparatus. As and when the Courts havepassed orders or the officers of local and other bodies have takenaction for ensuring rigorous compliance with laws relating toplanned development of the cities and urban areas and issueddirections for demolition of the illegal/unauthorised constructions,those in power have come forward to protect the wrongdoers eitherby issuing administrative orders or enacting laws for regularisationof illegal and unauthorised constructions in the name ofcompassion and hardship. Such actions have done irreparableharm to the concept of planned development of the cities and urbanareas. It is high time that the executive and political apparatus ofthe State take serious view of the menace of illegal andunauthorised constructions and stop their support to the lobbies ofaffluent class of builders and others, else even the rural areas ofthe country will soon witness similar chaotic conditions.”

22. Having regard to the above factual findings and legalposition, the Writ Petition is allowed; a Writ of Mandamus shallissue directing 5[th] respondent to take action against theconstructions made by respondent Nos.6 to 8 in deviation of thesanctioned plan within one week from the date of receipt of a copyof this order; the 5[th] respondent shall also ensure thatconstructions made by respondent Nos.6 to 8 beyond the alleged40’ wide road and within the 60’ width of the road are also removedwithin aforesaid period.

23. The respondent Nos.6 to 8 shall be liable to paycosts of Rs.4,000/- (Rupees four thousand only) to the petitioners;the 1[st] respondent shall also consider initiating disciplinaryproceedings against the Commissioner of 5[th] respondentCorporation for his inaction in enforcing the provisions of the Actwithin a period of six weeks from the date of receipt of a copy of this order.

24. As a sequel, miscellaneous petitions pending, if any, shall stand disposed of.

Date : 30-12-2014 kvr

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JUSTICE M.S. RAMACHANDRA RAO

[1](2004) 8 SCC 733[2](2013) 5 SCC 357[3](2009) 15 SCC 705